Spousal Liability

By
Edelman Combs Latturner & Goodwin LLC
|July 30, 2017

Question: Can a mortgage lender go after my spouse for a loan I co-signed
prior to our marriage? I co-signed on a mortgage with my ex-husband. I
want to re-marry but don’t want my new husband to get financially
stuck if my ex defaults on the mortgage. My ex can’t financially
re-finance on his own right now. How can I protect my new husband from
the bank going after his accounts if my ex defaults?
Answer: Your new husband does not have any liability on the loan. If you
signed the note (as opposed to the mortgage),and your ex defaults, the
bank may be able to get a personal judgment against you. If all you signed
was the mortgage, you have no personal liability; only your interest in
the property is at risk.

Assuming you signed the note, you and your new husband should maintain
separate accounts, at least with respect to property he owned prior to
marriage, and probably with respect to all property, in order to protect
him. Under Illinois law, the contents of a joint account are presumptively
100% the property of either account holder. Any account holder may file
a motion with the court supported by evidence showing who actually owns
the contents of the account. The account holders have the burden of proof.

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